In the wake of yesterday’s disappointing ruling in Snyder v. Phelps, I am very much averse to joining the crowd that wants to crack open the champagne and toast to this “big win” for the 1st Amendment.
The Framers didn’t enshrine our God-given right to free expression in the Constitution as a stress ball so we might vent about our feelings on a whim and compel others to listen. It was put there as a tool in pursuit of a more perfect union; that is to say, to allow the free expression of ideas in the public square, in the hopes that worthy ideas could be exchanged and spread. For centuries, we have exercised this right with great responsibility, knowing full well that asking people to be quiet in libraries because people are reading doesn’t stop us from screaming at the top of our lungs outside state capitals. That’s because there’s a difference between speech and noise, and given the propensity of the Phelps crowd to engage in deliberate antagonism of private citizens, we should have no qualms about describing their activity as noise or some other public nuisance. Consider the following:
Municipalities across the country have noise ordinances based on the incontrovertible fact that excessive noise is detrimental to the quality of life. It disrupts productive behavior, drives down property values and can even adversely affect a person’s health. That said, some communities have expanded on these rules to regulate the stereos in vehicles, and those drivers who are blasting their respective interpretation of music at an excessive volume are ticketed. Now, in ticketing a driver whose Honda Civic is emitting Eminem at 75 dB, are we compromising his right to free expression? Absolutely not, because he isn’t using that 2400 watt amp in his trunk to spread Marshall Mather’s vision for a generation while he cruises the streets. To a passerby, the driver is just making a lot of noise, and the law protects the passerby.
Laws such as these–routinely upheld as constitutional–go so far as to curb inconsiderate behavior on the grounds that they cause undue discomfort on fellow citizens. In the case of Phelps, we’re talking about instances of deliberate harassment where, unlike the noise ordinances enacted to benefit entire communities, we can identify specific victims who experienced tangible harm from the defendants’ activities. Like the driver of the car, the Phelps’ folk can call it speech, but to the grieving family, it might as well be someone using a jackhammer outside their home at 3am. Knowing this, would requiring the Phelps contingent to protest a half mile from a cemetery represent a greater imposition than forcing a grieving family to endure harassment? Absolutely not.
Just as the person with the loud stereo can crank up the volume at home, the Phelps protesters should be free to shoot their mouths off wherever they choose–just as long as they aren’t violating anyone else’s oft-forgotten rights to life, liberty and the pursuit of happiness.